OPINION:
President Biden’s defenders have their work cut out for them.
Three House committees have thus far turned up bank records suggesting millions in foreign cash flowed into shell companies associated with Biden family members. At least $240,000 in checks drawn from family accounts found their way into Mr. Biden’s pocket.
Rep. Jamie Raskin of Maryland, ranking Democrat on the House Oversight Committee, sees no misconduct at all. “The price of this stupidity,” Mr. Raskin said in a statement earlier in the month, “is huge constitutional damage as Republicans try to turn the extraordinary device of impeachment into a meaningless political event.”
Even Republicans like Sen. Markwayne Mullin of Oklahoma oppose the effort, saying Mr. Biden’s conduct occurred before he was president, and an offense “has to be committed while he was in office” to be impeachable.
It is true that Andrew Johnson, Bill Clinton and Donald Trump were all impeached for actions they took while serving as president, but the story does not end there. A more complete recounting of the precedent tells of a pair of federal judges who were ousted for offenses they committed before taking office.
In 1912, the House impeached 3rd U.S. Circuit Court of Appeals Judge Robert W. Archbald on 13 articles related to his use of office to acquire business favors from litigants, including actions he took as a circuit judge and judge for the U.S. Middle District of Pennsylvania. The Senate convicted and removed him on five of the counts, including offenses committed during his district judgeship.
Almost 100 years later, the House impeached and the Senate removed U.S. District Judge Thomas Porteous of the Eastern District of Louisiana for receiving things of value from attorneys with cases he was presiding over — including payoffs accepted while he was a Louisiana state court judge. The fourth impeachment article against Porteous said he made false statements to the Senate and FBI in connection with his nomination and confirmation.
A key part of the Porteous defense in the Senate trial was that conduct that predated his time as a federal judge couldn’t be impeachable.
Senate Democrats didn’t buy this argument. Then-Senate Judiciary Committee Chairman Patrick Leahy of Vermont told his colleagues he rejected “any notion of impeachment immunity [for pre-federal behavior] if misconduct was hidden, or otherwise went undiscovered during the confirmation process, and it is relevant to a judge’s ability to serve as an impartial arbiter.”
A little over a decade later, Mr. Leahy presided over the second Trump impeachment trial in 2021 after Chief Justice John Roberts made clear he wasn’t interested in participating — the Constitution requires the chief justice to preside only over the trial of a sitting president.
The bar for impeachment is lower — as it perhaps should be — for appointed judges than for an elected president. Now that the House is weighing the potential of impeaching Mr. Biden, it’s worth debating whether actions taken prior to the presidency are relevant — so long as the president’s defenders don’t try to get away with claiming doing so would be “unprecedented.”
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